Empolis
General Terms & Conditions for Software Business and IT Services
I. General provisions applicable to all services
The following provisions apply to all software business and IT services performed for the customer by Empolis GmbH (Kaiserslautern):
1. Offers, cost estimates, scope of services
1.1 Empolis’s services are based on the relevant offer, provided that this offer has not been provided as “non-binding”, and furthermore, provided that the customer has accepted this offer by issuing a purchase order based thereon during the period of the offer’s validity.
1.2 The customer shall reimburse Empolis for any cost incurred in connection with Empolis submitting an offer or cost estimate, such as visits to the customer’s premises etc. This shall also apply if the customer does not place an order or only places an order on a smaller scale than envisaged in the offer or cost estimate.
1.3 Empolis shall be entitled to assign its obligations wholly or partly to third parties.
2. Cooperation by the customer
2.1 The customer shall promptly notify Empolis of any change of its domicile, registered office as well as any changes of its legal form or in the scope of liability of its business.
2.2 The customer shall furnish Empolis promptly with all information and documents needed by Empolis to perform its contractual obligations, especially concerning hardware, data, software and software elements intended to work in conjunction with the Empolis software. The customer shall provide Empolis with the necessary information on the intended application, on business and process-engineering goals and priorities and on all other specifications within the customer’s sphere of responsibility. If needed, the customer shall obtain any necessary third-party consents. When services are performed on the customer’s premises, the customer shall make available - upon request of and free of charge to Empolis - any personnel that may be required for accident-prevention grounds.
2.3 If Empolis shall provide services or supply and/or install software, the customer shall
2.3.1 at the time of commencement of work without any delay arrange unimpeded access for Empolis to the data-processing unit on which the software provided by Empolis will be operated. The customer shall be responsible for providing all technical facilities needed for Empolis to perform its contractual services such as power supply, telecommunication links and data-transmission lines (e.g. remote access to permit Empolis to perform the services) and make them available to Empolis to an appropriate extent free of charge. Telecommunication costs are borne by the customer.
2.3.2 upon receipt promptly test the functional performance of the software and promptly inform Empolis of defects.
2.3.3 take suitable measures if the software does not run in accordance with the contract, in particular by undertaking work-arounds, data-back ups, continuous result checks and, in the event of errors, providing Empolis with a detailed error description. Data must be reconstructable at acceptable cost from machine-readable data material.
2.3.4 take responsibility for data back-ups from the installed software.
2.3.5 keep a record of the copies of the software and the user documentation made by the customer and shall provide - upon request – such information thereon to Empolis.
2.4 The customer represents and warrants that - for purposes of fulfilling the contract – the customer is entitled to permit Empolis/its subcontractors to store and process such third-party personal data (within the meaning of the German Data Protection Act) that it has supplied to Empolis/its subcontractors.
2.5 The customer shall bear any costs of Empolis due to services that have to be repeated or were delayed as a result of inaccurate, subsequently corrected or incomplete information given by the customer.
3. Service alterations and additions (Change Requests)
3.1 If Empolis is working on concepts or software for the customer, the customer is entitled to request in writing changes or additions to the object of the contract (“Change Requests”) until the object of contract has been handed over. If a Change Request is reasonable with regard to Empolis’ operational capacities, Empolis shall examine the feasibility of the Change Request. Any agreed completion date for customisation/programming work shall be extended by the time needed by Empolis for the examination of the Change Request. To the extent possible, Empolis will state what changes result to the agreed project contents, what impact the Change Request may have on the contractual deadlines and how much time Empolis needs to prepare a detailed offer on price and deadlines when implementing the Change Request.
3.2 Subject to Empolis providing such offer within a reasonable time, the customer shall decide to accept or refuse this offer within ten calendar days from receipt of the offer from Empolis. If customer does not accept within the foregoing time the offer is deemed refused. Empolis will, then, continue to work on the basis of the previously agreed terms without reference to the requested change unless the customer terminates the contract in accordance with Section 649 of the German Civil Code [BGB].
3.3 Subject to Empolis having given prior notice to the customer, Empolis may invoice a payment for examining the Change Request and preparing related documentation. Unless otherwise agreed between the parties this payment shall be based on the expenditure of time in accordance with the Empolis price list.
4. Rights of use to software
4.1 Subject to customer’s full payment of the agreed fee, Empolis hereby grants to the customer a non-exclusive perpetual right to use the software in its business for its own purposes on the territory of the Federal Republic of Germany by accordingly loading in full or in part, displaying, running, transferring or storing such software. The right of use is granted only for (i) the data processing units, (ii) the users and (iii) number of users as well as (iv) the numbers of copies as specified in the Empolis offer. The customer shall be entitled to make and store one backup / archive copy within the agreed scope of use of the software.
4.2 If the user documentation is supplied on a machine-readable data carrier, the terms of Section 4.1 shall apply accordingly. Printed user documentation is handed over to the customer only for the purpose of using the software and may be copied for this purpose.
4.3 The customer is entitled to connect the software with other computer programs. Decompilation of the software into other codes shall be permitted within the restrictions of Section 69e of the German Copyright Act (UrhG). Only if Empolis, after a reasonable time for consideration has elapsed, is unwilling to establish the requested interoperability in exchange for reasonable compensation, the operations in accordance with Section 69e may be assigned to a third party.
4.4 The customer may edit the software for debugging purposes, provided that these actions are needed for using the software as intended for the customer’s own purposes and Empolis is unwilling to perform these actions within a reasonable time and on reasonable terms. In no event customer’s own use include dissemination of the software. The customer must show evidence of the need for action to be taken to debug the software.
4.5 Identifications, trademarks/names, notes regarding registered trademarks or other references to holders of proprietary rights on supplied data media and user documentation may not be removed and are to be transferred unaltered to customer-made copies of machine-readable data carriers.
4.6 Subject to relinquishing its own right of use, the customer may transfer the rights granted herein to use the software, including user documentation, to a third party, provided that the third party has agreed in writing that the customer’s obligations under this contract shall remain in force in relation to it, the third party, and in particular with respect to the terms governing the right of use. The customer shall promptly inform Empolis of the transfer, identifying the third party. In the case of a transfer the customer shall hand over to the third party all copies of the software including backup/archive copies or destroy copies not handed over. The customer’s right to use the software ceases upon the transfer of the software.
4.7 The following rights are expressly excluded: the right to copy and disseminate the software, the right to permit its use by third parties, the right to sublicense, and the right to edit and alter the software including use and dissemination of the work products resulting therefrom.
4.8 Where open-source software is required for the Empolis services, the customer shall obtain it in its own name and at its own expense and make such open-source software available to Empolis together with the required licences.
4.9 The foregoing provisions of this Section 4 shall apply accordingly to all further developments (upgrades, releases, new versions etc.) which Empolis prepares for the customer in the course of their contractual relationship (especially under software-maintenance contracts).
5. Remuneration, payment terms
5.1 The customer shall pay the agreed remuneration. If no remuneration has been defined for a specific service, Empolis’ prices and daily/hourly rates as shown in its generally applicable price list (or any updates thereto) shall apply. Unless agreed otherwise, the remuneration applies ex works Empolis.
5.2 The remuneration is quoted net of sales tax at the statutorily applicable rate and country-specific national taxes in the case of cross-border deliveries. Travelling expenses are charged in addition to the agreed remuneration. Travel time is deemed as working time.
5.3 If a time- and material-based remuneration has been agreed, the customer shall effect installments if Empolis so requests. In such cases, and in the case of the final invoice, which accounts for the installments, the remuneration is payable without deduction immediately at the time of the invoice, unless the parties have agreed on specific dates for payment.
5.4 If a lump sum has been agreed, it shall be paid as follows: 40% upon signing of contract; 30% eight weeks after signing of the contract or upon an agreed date and 30% after formal acceptance.
5.5 In the case of projects on software customisation and development with an agreed implementation time exceeding 12 months, Empolis reserves the right to increase the contract compensation upon three-months notice, unless a lump sum has been agreed. Such increase shall not be more than 5% of the agreed contract price within one year after the last requested increase.
5.6 All Empolis accounts become payable immediately if the customer fails, without justification, to comply with payment deadlines and credit periods or a material deterioration occurs in the customer’s financial circumstances.
5.7 Where payment by the customer does not settle all of Empolis’ due claims, such payment shall be applied first to liabilities which have not subject to a court decision and are not currently subject of legal proceedings, and last to legally enforceable liabilities, in each case first to older liabilities and then to younger liabilities.
5.8 The customer may set-off against Empolis’ claim for payment only such outstanding liabilities that are uncontested or have been determined by final and unappealable judgment. The customer may only assert a right of retention with respect to such claims as are uncontested or have been determined by final and unappealable judgment.
6. Warranty
6.1 The warranty period for defects is one year from the date of delivery (standard software) or from the date of formal acceptance (for design specifications or customisation, programming and installation of software).
6.2 A defect occurs if the contract software (together with its documentation) does not provide for the agreed specifications or is not fit for the contractually agreed use. The contractually agreed specifications are defined in the Empolis offer or design specifications. The customer shall inform Empolis of defects promptly after detecting them, including a defect description.
6.3 Empolis is entitled to a reasonable remedy period. Empolis may at its discretion either cure the defect or re-perform the service. Instructions from Empolis for a reasonable workaround to circumvent the software defect shall be deemed a sufficient remedy. The parties agree that in view of the complexity and scale of software programming more than two attempts are generally required to cure a defect. Recession is precluded in case of a minor decrease of the value or useability of the design specifications. Recession is likewise precluded if the customer is in default of acceptance or is predominantly useability responsible for the defect. The duty to remedy shall not apply if the supplied, customised or newly created software is used in an operational environment which does not comply with the conditions specified, unless the customer demonstrates that the defect is not attributable to this.
6.4 If a defect notification proves unjustified, the customer shall bear the costs incurred by Empolis as a result thereof if the customer has culpably failed to recognise the absence of the defect.
7. Term of contract, termination
7.1 Agreements on customising, development, installing and granting rights of use to software and design specifications together with consulting and training services may be terminated only in accordance with applicable law.
7.2 A software maintenance/support contract commences on the agreed date and is concluded for a term of at least 12 months. If the contract is not terminated by one of the parties upon three month notice to the end of the term, the contract shall be automatically renewed for one year in each case. The right of termination may also be exercised partially, with regard to a section of the contract covering individual elements of the software, provided this is reasonable to the other party and the elements are functionally separable. The right of termination for cause shall remain unaffected. Good cause for termination by Empolis shall in particular be:
- if, due to the failure of a third party to deliver a new program version, for which Empolis is not responsible, Empolis is unable to render its services, despite Empolis having made all reasonable endeavours to obtain the new program versions;
- if the customer himself or through a third party has interfered with the software to be maintained by Empolis;
- if changes and additions to the Empolis-maintained software induced by the customer lead to changes in Empolis’ scope of services, in particular lead to additional costs;
- if the customer refuses to accept a new release; or
- if a customer´s payment is overdue for more than two months or customer has not settled two (not necessarily consecutive) invoices on the agreed due date.
Notice of termination must be given in writing.
8. Liability
8.1 Irrespective of the legal basis of a claim, a party shall only be liable for itself and its vicarious agents if a material contractual obligation has been culpably breached in a manner jeopardising the purpose of the contract or the damage is due to intentional acts or omissions or gross negligence. A material contractual obligation is an obligation which is essential to the proper performance of the contract on which the other party will typically rely. If the culpable breach of such a material contractual obligation is not caused by an intentional act or omission or gross negligence, the basis and extent of liability are limited to such losses as are typical in contracts of this kind and as were reasonably foreseeable at the time the contract was concluded.
8.2 Empolis is liable for restoration of data only if the customer has ensured by appropriate precautions, in particular by making daily backup copies of all data, that this data can be reconstructed at justifiable cost from machine-readable data material.
8.3 Where these Terms and Conditions preclude or limit liability, this also applies to the personal liability of the executive officers of the party concerned, its employees, agents and subcontractors.
8.4 The limitation of liability contained in these Terms and Conditions shall not apply to claims under the German Product Liability Act.
8.5 The parties are not liable for breaches of obligations under this contract and of orders concluded pursuant thereto if the breach was caused by force majeure, in particular war, civil war, acts of god, terrorist acts, strikes (not lockouts) and embargos. A strike is not deemed force majeure for purposes of this Section if the strike has been caused by unlawful actions at the party concerned. Where a party is prevented by force majeure from performing its contractual obligations, this shall not be deemed breach of contract, and the deadlines fixed in the contract or on the basis of it shall be deemed extended in accordance with the duration of the impediment. The affected party shall inform the other promptly in writing of the force majeure event explaining the nature of the occurrence, the date and time of its occurence and the likely effects of the event on its ability to perform its contractual obligations.
9. Confidentiality
9.1 Unless otherwise agreed, each party shall treat information received by the other party (including documents, samples etc.) as business secrets, shall use such information only for the purposes of the contract and shall not make it accessible to third parties. This obligation shall not apply if the information
- was in the public domain before receipt, or
- entered the public domain after receipt without the recipient of such information being responsible, or
- was disclosed to the recipient of the information at any time by a third party who was to the best knowledge of the recipient entitled to do so, or
- was known to the recipient of the information before receipt or is developed by him independently, or
- is made available by Empolis to a third party for the latter to perform its contract service and Empolis imposes a duty of confidentiality in the terms of the present confidentiality agreement on such third party,
- is disclosed to an advisor of a party who is bound to professional secrecy (tax consultant, auditor, solicitor) to enable him to advise the party appropriately, or
- must be disclosed on the basis of a final/unappealable decision of a public authority or court or by law. If such a reason becomes known, the recipient of the information shall promptly inform the other party who had disclosed the information.
9.2 The parties will use the same care in keeping information secret as they do with respect to their own business secrets. They shall impose a corresponding duty of confidentiality on their personnel insofar as they may acquire knowledge of information.
9.3 All rights to the information shall remain with the disclosing party. Irrespective of the term of the contract, for a term of three additional years beginning on the date the information was provided, the information disclosed shall only be used in accordance with this agreement.
II. Special provisions applicable to particular services
The following provisions apply to the services rendered by Empolis per the agreed scope:
1. Preparation of design specifications
1.1. Empolis shall prepare design specifications in the form of written documentation based on the offer. The object of the design specifications is to create an IT basis for preparing individual software and/or software which is to be customised, in particular where such individual software is to be subject to parameterisation.
1.2 In its design specifications, Empolis analyses, evaluates and documents the customer’s requirements. The functions and tasks the software shall perform in order to achieve the customer’s requirements are described, as well as the operational sequences, interfaces and interaction between the functions together with the data required and generated by those functions. The design specifications shall be prepared by Empolis in close collaboration with the customer.
1.3 The content of the design specifications shall only constitute an express warranty if this has been explicitly stated in writing. Fulfillment dates or periods for performance shall not be binding unless Empolis has expressly accepted them as binding.
1.4 If the work product materially complies with the agreements made, the customer shall give a written declaration of formal acceptance, promptly, however not later than four weeks of receiving the design specifications. If there are material deviations from the contractually agreed requirements, Empolis shall cure these differences within a reasonable time. Empolis shall, then, submit the work product to the customer for a second formal acceptance procedure. Formal acceptance by the customer may also be given subject to a reservation of its rights in the event of a defect.
1.5 If the customer withholds formal acceptance without giving good reasons, Empolis may set a reasonable period of time for declaring formal acceptance. Upon expiration of that deadline the work product is deemed accepted unless the customer provides in writing, within such period, the ground for its refusal to effect formal acceptance.
1.6 Empolis grants the customer a non-exclusive and non-transferable right to use the design specifications prepared for the customer’s business as a basis for programming/customising its software. This shall not affect Empolis’ right to prepare design specifications with comparable performance requirements for third parties.
2. Provision of advice and training
2.1 Empolis shall advise and/or train the customer as set out in the offer.
2.2 If the services have not been performed, or have not been performed in accordance with the contract, Empolis shall, upon written complaint of the customer, render the services in accordance with the contract within a reasonable time.
3. Grant of a right of use to standard software
3.1 Empolis shall grant the customer a right of use to standard software (hereinafter “software“) in object code, together with user documentation. The scope of performance and functionality of the software subject to this right of use is defined by the Empolis product description in effect at the time the contract is concluded.
3.2 The software will run in the hardware and software environment specified in the Empolis product description or the contract. The operational environment conditions are stated in the product description or the offer. Agreements which go beyond the foregoing, for example agreements dealing with interoperability with other programs or networking facilities, depend on the customer’s specific situation and must be agreed separately.
3.3 The technical data and specifications in the product description are not an express warranty unless expressly designated by Empolis as an express warranty.
3.4 The customer shall receive one copy of the software on the machine-readable data medium specified in the contract and one copy of the user documentation. The user documentation is supplied to the customer in printed form or on a machine-readable data medium, possibly the same medium on which the software is recorded. If the customer so requests, it will be supplied on a machine-readable data medium provided by the customer at its own expense.
3.5 Additional services such as installation of the software on the customer’s hardware, initial instruction and training must be agreed and paid for separately if these services are to be performed by Empolis. The software, customer-specific adaptations of the software and maintenance of these customer-specific adaptations shall only be within the scope of Empolis’ contract if those were offered in writing by Empolis and ordered by the customer.
4. Maintenance of standard software
4.1 Empolis shall maintain the standard software design specified in the offer, including the associated user documentation. Maintenance of the software serves to maintain the functionality of the software, but does not guarantee that the software will operate at all times free of defects and without interruption. Empolis offers different Service Levels for maintenance work to its standard software. The nature, scope and content of maintenance services depend on the agreed Service Level. Where the offer provides for maintenance services from Empolis but no Service Level is specified, maintenance services are provided by Empolis as detailed in the “Silver” Service Level Agreement currently applicable. The applicable Service Level Agreement will be forwarded to the customer on request, if not already attached to the offer.
4.2 The customer may switch from the currently agreed Service Level to another Service Level with a higher service profile by notifying Empolis no later than 60 days before the end of the current contract term. The new Service Level shall, then, first apply at the beginning of the new contract year. The compensation shall be determined by Empolis’ price list for the relevant Service Level.
4.3 Grant of rights of use to new program versions (hereinafter ”Version“) with performance and functionality upgrades as a result of reprogramming substantial parts of the software, possibly including the option of utilising new technologies, may be subject of a separate agreement granting a right of use to software for an additional fee.
5. Programming, customising and installing of software
5.1 The nature and scope of the services to be performed by Empolis to develop, customise and install software are defined either in Empolis’ offer or in the design specifications prepared for the customer by Empolis on the basis of these Terms and Conditions.
5.2 Once operational, Empolis shall provide the work product to the customer in the agreed form and notify the customer in writing of its operationability. Formal acceptance of services shall be subject to a successful system performance test, to be started within two weeks of receiving this notification and to be completed within a further two weeks. If the work product is materially in accordance with the contract, the customer shall declare its written formal acceptance. If the customer does not declare formal acceptance without stating good reasons, Empolis may set a reasonable deadline for the declaration to be given. If the customer does not specify its reasons in writing within the foregoing period, the work product is deemed accepted on expiry of this period.
5.3 The parties agree in writing on acceptance criteria which must be met in the system performance test; a failure to meet these performance test shall be deemed as non-acceptance.
5.4 Empolis shall cure any material deviations from the contractually agreed requirements within a reasonable time. A material deviation from the contractual requirements shall be deemed to exist if a malfunction in some of the program sequences results in more than irrelevant faults, so that parts of the software are unusable, or if a persistent malfunction occurs in the software’s operation which renders the system non-functional and/or a malfunction of system components occurs which disrupts all the customer’s work sequences. Empolis shall, thereafter, furnish the work product to the customer again for a second formal acceptance.
5.5 The customer may also declare its formal acceptance subject to a reservation of its rights in the event of a defect. In this case the provisions in the preceding paragraph with respect to material deviations as to which the customer has reserved its rights shall likewise apply.
5.6 If different deadlines have been agreed for establishing the functionality of certain elements, system performance testing shall be limited to the part of work product in question. At acceptance of the final work product element, the inter-operability of all of the work product elements shall be established by a system performance test including all of the work product elements.
5.7 The parties shall each designate one contact person who shall be responsible for meetings and giving and receiving information relating to the project. Upon entering into the contract, the customer shall promptly designate in writing the persons whose statements on technical and contractual matters shall be deemed binding on the customer. Both parties shall each appoint a project manager responsible for resolving all technical issues associated with the contract services. Each party shall notify the other party in writing of any replacement of the project manager.
III. Final provisions
1. The underlying offer from Empolis, including any amendments, shall be deemed to constitute an integral part of the present contract.
2. The place of performance for Empolis’ deliveries and services is Empolis’ registered office. Jurisdiction and venue shall be at the registered office of Empolis.
3. Ancillary agreements, amendments or addenda to the contract must be made in writing. The parties may only derogate from this written form requirement by written agreement.
4. The contractual relations between the parties are governed by the law of the Federal Republic of Germany, excluding the application of the UN Convention on Contracts for the International Sale of Goods dated 11th April 1980 and excluding application of the German conflicts-of-law rules.
5. Should the present contract contain a gap or should a provision thereof be or become invalid in whole or in part, the remaining provisions hereof shall otherwise remain in full force and effect. The parties shall be deemed to have replaced the missing or invalid provision by such provision as comes the closest to the commercial purpose the parties originally intended by the missing or invalid provision. However, this contract shall be invalid in its entirety if such changes would constitute an unacceptable hardship to one of the parties.
6. Empolis is entitled to assign its rights and obligations under the present contract to its ultimate shareholder or its affiliated group companies within the meaning of Section 15 of the German Stock Companies Act (AktG) or to assign the entire contract to the foregoing. The customer may not transfer its rights and obligations in part or as a whole under the present contract without Empolis’s prior written consent.
7. The customer acknowledges that Empolis may store and process personal information, as defined by the German Data Protection Act, which it has acquired in the course of the contractual and business relationship, if needed for the performance of the present contract.
8. The customer agrees that Empolis may name the customer as a reference customer for the solution developed in this project. The foregoing also includes permission to use the customer’s name and the application produced for marketing purposes. Furthermore, the customer’s internet and intranet solutions produced or supported by Empolis shall contain a reference to the fact that the solution was created using Empolis products and services (“powered by Empolis“ button; link to the Empolis homepage “www.empolis.com“).
